The Israeli government has recently claimed that it can “legislate anywhere in the world”, that it is “entitled to violate the sovereignty of foreign countries”, and that “is allowed to ignore the directives of international law in any field it desires”. This was written in an official response letter to the Supreme Court last month.
On the face of it, these are audacious claims. Is it really that bad? I would say that it’s even worse. The background to these statements is a new law from last year, which legalizes outright theft of Palestinian land.
Several Palestinian human rights organizations have challenged the law in court. The plaintiffs are Adalah, the Legal Center for Arab Minority Rights Jerusalem Legal Aid and Human Rights Center (JLAC), and Al Mezan Center for Human Rights (Gaza) on behalf of 17 local Palestinian authorities in the West Bank. The Israeli government was represented by a private lawyer, Harel Arnon, because Attorney General Avichai Mandelblit refused to defend the law in court, since he deemed it illegal by international law already when it was first passed.
The Settlement Regularization Law was passed in February last year, in order to retroactively legalize thousands of settler homes and structures built on Palestinian private land, to avert the possibility that the Supreme Court might one day sanction their removal. Before the law was passed, Israeli law still considered such structures illegal, even though under international law, absolutely all the settlements are a flagrant violation of international law, be they located on private land or not.
It was not only Haaretz that called the law a “theft law” – it was also longtime Likudniks such as lawmaker Benny Begin; Former Likud minister Dan Meridor called it “evil and dangerous”; even Prime Minister Netanyahu was warning that passing it may end up getting Israeli officials to the International Criminal Court in The Hague; attorney General Avichai Mandelblit’s stated refusal to defend the law in court was met with reassurance by Justice Minister Ayelet Shaked that the state could simply get a private attorney (which it did). The contentious matter was not only the theft itself – but the application of Israeli law enacted directly by the Knesset (rather than by the Military occupation authority), that was seen as a precedence leading to de-facto annexation. As Dan Meridor wrote in his Haaretz opinion piece just ahead of the final vote on the law:
“The Knesset has never enacted legislation regulating Arabs’ property ownership in Judea and Samaria. The Knesset was elected by Israelis and legislates for them. The Arabs of Judea and Samaria did not vote for the Knesset, and it has no authority to legislate for them. These are basic principles of democracy and Israeli law. As a rule, elected officials legislate for their constituents and those within the area of their jurisdiction, not others. No government in Israel has applied its sovereignty to the West Bank – not former Likud prime ministers Menachem Begin or Yitzhak Shamir. They understood the obvious: If you want to pass legislation for the West Bank, you have to extend your sovereignty and allow the residents of Judea and Samaria the right to become citizens and vote in Knesset elections. And the meaning is clear.”
I should add a critical note here about Meridor’s central claim – that it is in fact erroneous regarding the West Bank, in that East Jerusalem is by international law a part of the West Bank, and Israel has applied its sovereignty unilaterally upon it (de facto since 1967, and in quasi-constitutional basic law in 1980, in defiance of international law and UNSC resolutions). The fact that Meridor simply considers East Jerusalem a part of Israel, and now goes to admonish Israel for basically doing the same (de facto annexation) regarding the rest of the West Bank, only goes to show that this is a case of the blind leading the blind.
But let us now return to the recent ‘theft law’ legislation from last year: The pressure to legitimize Israel’s own crimes became too great to oppose even from the (more conservative) right. The looming ‘danger’ that Meridor mentioned, of enacting de-facto annexation and possibly having to extend Palestinians the right to become citizens, was overweighed by the greed for the land. Israel’s famous equation of “maximum Jews, maximum territory, minimum Palestinians” came this time to mean that Israel would risk enacting state legislation in an area where Jews were still generally not a majority, in the hope that it would help them become it. Thus the law was passed by 60-52, and the land-grab was made legal by the Israeli Knesset. It was estimated that the law would retroactively legalize about 4,000 settler homes.
In the recent court case, the plaintiffs challenging the law pointed to the obvious illegality:
“Adalah and fellow petitioners argued that the Knesset is not permitted to enact and impose laws on territory occupied by the State of Israel. Thus, the Knesset cannot enact laws that annex the West Bank or that violate the rights of Palestinian residents of the West Bank.”
The State of Israel, in the recent response letter (Hebrew) to the court (filed August 7th), claimed in its defense that:
 ‘The Knesset has no limitation which prevents it from legislating extra-territorially anywhere in the world, including the area [‘Judea and Samaria’]’.
Having made that statement, the Israeli government goes on to rebuff the plaintiffs’ claim that it cannot legislate there and goes further to suggest that it is not at all subject to the directives of international law:
 ‘…Although the Knesset can legislate [concerning] any place in the world, although it is entitled to violate the sovereignty of foreign countries through legislation that would be applied to events occurring in their territories […], although it is within the authority of the Government of Israel to annex any territory […], although the Knesset may ignore directives of international law in any area it pleases […] despite all these, the plaintiffs seek to define a “rule” by which precisely in Judea and Samaria the Knesset is prohibited from legislating anything, and that precisely there, and nowhere else in the world, it is subject to the directives of international law’.
Adalah Attorneys Suhad Bishara and Myssana Morany, were in disbelief:
“The Israeli government’s extremist response has no parallel anywhere in the world. It stands in gross violation of international law and of the United Nations Charter which obligates member states to refrain from threatening or using force against the territorial integrity of other states – including occupied territories. The Israeli government’s extremist position is, in fact, a declaration of its intention to proceed with its annexation of the West Bank.”
Adalah has posted about this and provided some quotes from the above. You would think that such proclamations by the Israeli government would really hit the mainstream news cycle, yet it seems to have so far gone relatively unnoticed.
Several of my contacts have responded to this little-reported news with a certain disbelief – could it really be that Israel is openly stating that it is above international law?
Indeed, as I had mentioned above, it is not exactly a secret that Israel is now acting in brazen defiance of international law. Its own highest legal authorities are completely aware of it. But what we also need to see is that it has been doing this for a very long time, in fact, since its inception. As I had mentioned at the time of the passing of the Regularization Law, legalizing the theft of Palestinian land has been Israeli policy since day 1. Attorney Harel Arnon was using this notion as precedence in defense of the recent law, noting (in pt. 4):
“The honourable court has never passed legal critique upon central legislation of the Knesset also in cases where it contradicted, by the method of the plaintiffs, the directives of international law in cases which were more clear (the enactment of Israeli legislation in the Golan Heights and East Jerusalem)”…
That’s a very valid point. Israel’s unilateral annexations of the Syrian Golan and East Jerusalem are direct violations of international law, and they are condemned very clearly in United Nations Security Council resolutions. If the Israeli court approved it then, why should it not approve it now?
Attorney Arnon used a Supreme Court quote from an earlier case (pt. 12), where the court opined that “the mere enactment of a random Israeli norm upon an anonymous place outside the country, does not necessarily make that anonymous place a part of Israel.” This was relating to the West Bank, where Israel indeed enacts Israeli law upon settlers, even in places where it has not annexed territory.
See, this is part of the basis by which Arnon claims that “Israel can legislate anywhere in the world”. The essence of this is “if we could do it before, why cant we do it now”?
This point should be taken very seriously. The Israeli Supreme Court has often been perceived as a tool of the Israeli occupation. Thus even in very clear cases such as the 2004 International Court of Justice Advisory Opinion on Israel’s ‘security barrier’, where the ICJ deemed it wholly illegal (because it was mostly built on Palestinian, not Israeli, territory), the Supreme Court still managed to deflect this and claim that international law did not apply to Israel in this way. The Supreme Court has repeatedly managed to avoid and deflect these bigger issues and allow for Israel’s continued creeping annexation. This is a current, ongoing issue. Israel is preparing to demolish the Palestinian West Bank village of Khan al Ahmar, with the approval and sanction of the Supreme Court. B’Tselem:
“On Thursday, 24 May 2018, three Israeli Supreme Court justices – Noam Sohlberg, Anat Baron and Yael Willner – ruled that the state may demolish the homes of the community of Khan al-Ahmar, transfer the residents from their homes and relocate them. This ruling removes the last stumbling block in Israel’s way in the matter, lifting the impediment which had thus far served to defer the transfer of the community, a war crime under international law”;
“The Israeli Supreme Court in the Service of the Occupation: In their ruling, Justices Amit, Meltzer, and Baron described an imaginary world with an egalitarian planning system that takes into account the needs of the Palestinians, as if there had never been an occupation. The reality is diametrically opposed to this fantasy: Palestinians cannot build legally and are excluded from the decision-making mechanisms that determine how their lives will look. The planning systems are intended solely for the benefit of the settlers. This ruling shows once again that those under occupation cannot seek justice in the occupier’s courts. If the demolition of the community of Khan al-Ahmar goes ahead, the Supreme Court Justices will be among those who will bear responsibility for this war crime” (my emphasis).
Attorney Arnon brought up the Adolf Eichmann case in the response letter:
“The Court further implemented this doctrine in the famous Eichmann (1962) case, regarding ex post facto penal legislation: ‘[W]here [there is a conflict between the provisions of domestic law and a rule of international law], it is the duty of the court to give preference to and apply the laws of the local legislature”.
It is smart to bring up the Holocaust in Israel. There’s often a particularly soft spot for that, and that can spill over to melt the ‘pedantic’ limitations of customary law. Eichmann was indeed kidnapped by Mossad in Argentina, 1960. He was given the death sentence in Israel and hanged in 1962. This is extra-territorial spy activity and extra-territorial enactment of jurisdiction. As it involved the Holocaust, few would dare challenge it. This lines up with Golda Meir’s claim that “after the Holocaust, Jews are allowed to do anything.”
And so Israel’s private attorney Harel Arnon is essentially saying: if we could do it to Eichmann, why can’t we do it to the West Bank?
Arnon is not directly implying that Palestinians are Nazis, although such comparisons do occasionally feature in opinions of leading pundits in Israel, such as those of Yoaz Hendel, former director of communications and public diplomacy for Prime Minister Netanyahu.
All this may go to explain the relative media silence there has been about the proclamations made in this letter. The world knows it has allowed Israel to get away with so much criminality, and the West knows that a lot of that has had to do with its own Holocaust guilt. That made it weak and reduced its willingness to take Israel to task for its violations. And maybe people are feeling that they shouldn’t be throwing stones in a glass house. But we must see what is happening – Israel is overtly legalizing theft. The brazen proclamations saying that international law does not apply to Israel should have been shocking – but sadly, they are not. Because we know it has been the policy for so long. And since the reaction has been weak, Israel, like a spoiled brat, has learned that it can get away with it, and that it can become ever more obnoxious without it suffering any cost.
Indeed, one is left to wonder, who will stop the Jewish State? After all, international law does not have the automatic enforcement mechanisms as domestic law, and the international bodies that were meant to hold Israel accountable to international law, have so far largely failed to do so, at least where Palestinians are concerned. In a time when the American superpower stands firmly on Israel’s side in violation of international law, as with the moving of the embassy to Jerusalem and the endorsement of Israel’s unilateral annexation of East Jerusalem, it is hard to see why Israel would or should believe that international law applies to it at all. This is the light in which we may understand the language in that letter. It’s so brazen, because there is not even a sense of need to portray any semblance of respect towards international law. Israel is now undertaking a bonanza of theft in broad daylight, with a chauvinist sense that nothing will stop it. That’s what really transpires from the language of that letter.
It’s OK to drop a jaw at this. The language in that letter should serve as a wake-up call. But then we must also collect ourselves and remind ourselves that it is up to grassroots pressure to change this situation and protect the Palestinians from the unhindered Israeli military and legislative colonialist onslaught, enacted by the ‘eternal victims’.
H/t Linda Cooper